The U.S. Court of Appeals for the Ninth Circuit today granted Lambda Legal's request to expedite the hearing of Sevcik v. Sandoval, its lawsuit challenging Nevada's discriminatory marriage ban. The decision comes just two days after Nevada Gov. Brian Sandoval sought leave to withdraw his brief defending the ban. The Ninth Circuit also granted Gov. Sandoval's request to withdraw his brief.

Lambda Legal Senior Attorney Tara Borelli said:

The fact that the government defendants no longer are defending Nevada's exclusion of same-sex couples from marriage makes any delay in these loving and committed couples securing the relief they seek particularly intolerable. The wheels of justice are now on a much faster track.

Gov. Sandoval's request and the earlier decision by Carson City Clerk-Recorder Alan Glover to withdraw his brief were motivated by the Ninth Circuit's recent ruling in SmithKline Beecham v. Abbott Laboratories that discriminatory classifications based upon sexual orientation must receive heightened scrutiny and should be presumed unconstitutional. The heightened scrutiny standard is much tougher to meet and rendered the state of Nevada's arguments in its original brief defending the marriage ban "no longer tenable in the Ninth Circuit," as Nevada's Attorney General conceded in a statement released last week. The withdrawal of the two government defendants leaves only the Coalition for the Protection of Marriage, which the U.S. District Court had allowed to intervene, defending the marriage ban.

Eleven attorneys general have signed a brief submitted to the 9th Circuit Court of Appeals defending Nevada's ban on same-sex marriage, the Salt Lake Tribune reports:

"If public affirmation of anyone and everyone’s personal love and commitment is the single purpose of civil marriage, a limitless number of rights claims could be set up that evacuate the term ‘marriage’ of any meaning," the attorneys general said in a newly filed amicus brief in the 9th Circuit Court of Appeals.

And once "natural limits" are gone, "it follows that any group of adults would have an equal claim to marriage," the attorneys general said.

The officials who signed the document are from Nevada, Alabama, Alaska, Arizona, Colorado, Idaho, Montana, Nebraska, Oklahoma, South Carolina, and Utah.

The attorneys general say 33 states adhere to a "historical" definition of marriage, which predates the nation’s founding and is centered on procreation, that limits access to the civil institution to one man and one woman.

"The theory of traditional civil marriage, that is, turns on the unique qualities of the male-female couple for procreating and rearing children under optimal circumstances," they argue. "As such, it not only reflects and maintains deep-rooted traditions of our nation, but also furthers the public policy of encouraging biological parents to stay together for the sake of the children produced by their sexual union."

Civil marriage "channels" sexual desires into stable unions, they said, and has a core purpose of "ameliorating the frequent consequences of heterosexual intercourse, namely the unintended issuance of children."

Following in the footsteps of Nevada Attorney General Catherine Cortez Masto, Carson City Clerk Alan Glover has revised his opinion on the state's same-sex marriage ban (and the impending court case surrounding it).

Both Masto and Glover are reconsidering their stances based on the Ninth Circuit court's ruling on SmithKline Beecham v. Abbott Laboratories, which ruled that attorneys may not exclude jurors based on sexual orientation. The case indicated that heightened scrutiny is required in judicial processes where sexual orientation is the cause of alleged discrimination.

Where Masto is only reviewing the brief she filed in support of the same-sex marriage ban, Glover has gone a step further and filed a letter to withdraw his brief.

The filing notes that he’s no longer opposed to the same-sex couples’ position in the case. He’s intending to file a notice of “non-opposition” with the appeals court...

Because the court now considers sexual orientation to be a “quasi-suspect” classification warranting more judicial scrutiny, the letter suggests, the clerk is less concerned about the broad reach of any eventual decision: it would be tied to sexual orientation claims and wouldn’t reach polygamy claims.

The impact of SmithKline Beecham v. Abbott Laboratories is already being deeply felt, but how much further will it go? Time will tell.

“The case made here is that the State of Nevada’s marriage law is constitutional because it serves the legitimate purpose of preserving traditional marriage,” Masto’s solicitor general wrote in the brief.

“The Ninth Circuit’s new decision…appears to impact the equal protection and due process arguments made on behalf of the state,” Masto said in the written statement. “After careful review of the SmithKline decision these arguments are likely no longer tenable in the Ninth Circuit.

“This office will conduct further review over the weekend in order to evaluate the state’s argument in light of SmithKline.We will be discussing this with the Governor’s Office next week.”

The case she is referring to is one in which the 9th Circuit ruled that attorneys could not exclude gay jurors from juries based on their sexual orientation.

Nevada Attorney General Catherine Cortez Masto (D) has an onslaught of backlash headed her way after a brief she filed on Tuesday linked same-sex marriage to bigamy and incest. The brief, responding to the Lambda Legal-filed case Sevick v. Sandoval which is challenging Nevada's 2002 ban on gay marriage, stands in vehement opposition to repealing the ban, reportedly "on the basis that it reflects the will of the people." Masto believes that the Ninth Circuit Court of Appeals need not apply heightened scrutiny to this case as “There exists neither fundamental right, nor suspect or quasi- suspect class, justifying a different standard of review.” A controversial perspective, to be sure, but not nearly as much as the direct links she draws among gay marriage, incest, and bigamy.

But in a section titled “Marriage Defined” explaining “what marriage is” and “what marriage is not,” Masto reminds the court that in addition to not being for same-sex couples under Nevada law, marriage is also not for those engaging in bigamy or incest.

...

Evan Wolfson, president of Freedom to Marry, took Masto to task for making an implicit comparison between same-sex marriage and bigamy or incest while saying she makes no solid argument against allowing gay nuptials in Nevada.

“Marriage is not ‘defined’ by who is denied it, and nothing in the brief explains why loving and committed couples of the same sex should be denied the legal commitment and bundle of obligations and protections that are available to different-sex couples,” Wolfson said.

Masto differs from other Democratic state attorney generals who have recently decided not to defend gay marriage bans based on their lack of constitutional validity. For their part, Lambda Legal will have words with Masto soon.

Jon Davidson, Lambda’s legal director, said “of course, we find any such comparison objectionable” between same-sex marriage and bigamy or incest. The organization is slated to file its formal response to the attorney general’s brief next month.

GetEQUAL Nevada lead organizer Derek Washington, a friend of Attorney General Masto's, issued the following statement in response to her brief:

"I count Attorney General Cortez Masto as one of my very first mentors, having met her at the 2008 Democratic National Convention in Denver. I am deeply disappointed that she would take the positions she has in her vigorous defense of a law that I find discriminatory and against the ideals of equality this great country was founded on. For the Attorney General to equate marriage equality with bigamy and incest is not only jaw dropping, but it is also a personal affront from someone I thought understood that we, LGBTQ Nevadans, are just the same as all other Nevadans. We work hard, send our children to school and contribute to the health of our communities. To be lumped in with bigamists and sexual criminals by a friend is, to say the very least, heartbreaking."